Anti-Abortion Activists Charged in Planned Parenthood Video Case

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David R. Daleiden at a hearing in Houston in 2016. California prosecutors say he violated the state’s privacy law by secretly recording videos in an attempt to discredit abortion providers.CreditCreditPat Sullivan/Associated Press

California prosecutors filed felony charges on Tuesday against two anti-abortion activists who secretly recorded videos in an attempt to discredit abortion providers, saying that some of the recordings violated the state’s privacy law.

Xavier Becerra, the state attorney general, charged David R. Daleiden, 28, and Sandra S. Merritt, 63, with 14 counts of illegal recording, and one count of conspiracy. In 2014 and 2015, they met with employees of Planned Parenthood and other groups that perform abortions and a business that supplies fetal tissue for research, surreptitiously recorded their conversations and released edited versions of some of the videos online.

They claimed to have gathered evidence that abortion providers and others were selling tissue from aborted fetuses for profit, which is illegal, but subsequent investigations failed to find evidence of that.

Critics said Mr. Daleiden and Ms. Merritt, who were working for the Center for Medical Progress, an anti-abortion group that was previously obscure, had deceptively edited the videos and misrepresented what they showed.

What was the fallout from the 2015 release of the videos?

Those videos were big news in summer 2015 and were cited early in the presidential campaign by Republican candidates, particularly Carly Fiorina, who was challenged for apparently exaggerating the content of one video.

The recordings also prompted investigations into Planned Parenthood and other groups by Congress, and by some state and local authorities. While those investigations failed to establish illegal trafficking in fetal tissue, they fueled calls to withhold government funding from Planned Parenthood.

Federal law already prohibits the use of public money for abortions, but Planned Parenthood provides other health services that can be paid for through programs like Medicaid. Texas authorities have tried to cut off Medicaid funding to the group, based partly on the videos, but a federal judge last month blocked that move.

Last year, California strengthened its privacy law to address situations like this one. The law already made it illegal to make such recordings, but said nothing about releasing them. The amended law now also makes it a felony to make the recordings public if they involve communications with health care providers.

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Sandra S. Merritt in 2016. She and Mr. Daleiden faced criminal charges in Texas last year, but the charges were dismissed.CreditPat Sullivan/Associated Press

Haven’t we heard about this sort of thing before?

For a decade, the conservative activist James O’Keefe has drawn attention for secret recordings he has made to damage organizations like Planned Parenthood, Acorn and National Public Radio. In 2010, he and three others pleaded guilty to a misdemeanor for entering a federal office under false pretenses — specifically, the office of Senator Mary Landrieu, Democrat of Louisiana, whom they had hoped to record.

Is recording conversations a crime?

It depends on the state, and the circumstances.

Under California law, you cannot eavesdrop electronically on “confidential communications,” or record them, without the knowledge and consent of all involved. (The law makes some exceptions that do not seem to apply here.)

Similar laws exist in 11 states, according to the Digital Media Law Project at Harvard University. Maryland’s law came into play after the impeachment of President Bill Clinton in 1998: Linda R. Tripp was indicted after secretly recording phone calls with her friend Monica S. Lewinsky, but the charges were later dropped.

What Mr. Daleiden and Ms. Merritt are charged with in California is not a crime in most states. Other laws generally allow recording with “one-party consent”: As long as someone in the conversation gives permission, the recording is legal.

What are the privacy implications?

The case against Mr. Daleiden and Ms. Merritt may turn on whether the conversations were, in fact, confidential. They say no; the people who were recorded — and the California authorities — say yes.

Some conversations are clearly confidential (two people chatting in their own home). Some clearly are not (strangers yelling at each other on a crowded sidewalk). And then there are a lot of situations where the expectation of privacy is somewhere between those extremes.

The videos cited in the California complaint captured conversations over restaurant tables in El Dorado Hills, Los Angeles and Pasadena, and at a National Abortion Federation conference in San Francisco where attendees had gotten credentials and paid a fee. Lawyers in the case are bound to argue over just how private or public those settings were, and whether there were people nearby who could have overheard the conversations.

Are there First Amendment concerns?

The defendants have said they were acting as journalists, but even if a court accepts that argument, it may not matter in this case. Eavesdropping laws apply to journalists, too. And while the activists may claim a right of free speech or free press to publish the videos, the charges are about collection, not publication.

News organizations often publish material, like classified government documents, that the law prohibits people from leaking. But courts have generally held that the leaker is criminally liable, not the publisher, or any intermediary.

Abortion rights groups have sued the Center for Medical Progress, and have obtained a court order barring the release of more videos, but that is a separate, civil case.